Lawry v. County of Sarpy
| Decision Date | 13 March 1998 |
| Docket Number | No. S-96-426,S-96-426 |
| Citation | 575 N.W.2d 605,254 Neb. 193 |
| Parties | Timothy LAWRY and Colleen Lawry, Appellants, v. The COUNTY OF SARPY, Nebraska, a political subdivision, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Demurrer: Pleadings: Appeal and Error. In an appellate court's review of a ruling on a general demurrer, the court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader.
2. Judgments: Demurrer: Appeal and Error. An order sustaining a demurrer will be affirmed if any one of the grounds on which it was asserted is well taken.
3. Political Subdivisions Tort Claims Act: Tort Claims Act: Liability. The discretionary function exception is expressed in nearly identical language in the State Tort Claims Act, see Neb.Rev.Stat. § 81-8,219(1) (Cum.Supp.1992), and the Political Subdivisions Tort Claims Act; thus, cases construing the state exception apply as well to the exception granted to political subdivisions by Neb.Rev.Stat. § 13-910(2) (Reissue 1991).
4. Actions: Statutes: Liability. The essence of an affirmative defense is to concede that while the plaintiff otherwise may have a good cause of action, the cause of action no longer exists because some statute or rule permits the defendant to avoid liability for the acts alleged.
5. Political Subdivisions Tort Claims Act: Immunity: Waiver: Pleadings: Proof. The discretionary function exceptions, found in Neb.Rev.Stat. § 13-910 (Reissue 1991), to the general waiver of tort immunity, provided for in Neb.Rev.Stat. § 13-908 (Reissue 1991), are matters of defense which must be pled and proved by a political subdivision.
6. Courts: Jurisdiction: Political Subdivisions: Immunity: Pleadings. In order for the district court to have subject matter jurisdiction under the disaster and civil defense statutes, the plaintiff must allege facts which show either (1) that the political subdivision's actions were not undertaken when complying with or reasonably attempting to comply with the provisions relating to civil defense set forth by Neb.Rev.Stat. § 81-829.55 (Reissue 1994) or an order, rule, or regulation promulgated thereunder and therefore the general immunity does not apply, or (2) that the political subdivision's actions constituted willful misconduct, gross negligence, or bad faith so as to fall within an exception to the general immunity.
7. Demurrer: Pleadings. In considering a demurrer, a court must assume that the facts pled, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.
8. Judgments: Appeal and Error. Where the record demonstrates that a decision of the trial court is correct, although such correctness is based on a different ground from that assigned by the trial court, an appellate court will affirm.
Timothy K. Kelso, of Rasmussen, Mitchell & Kelso, Omaha, for appellants.
Vincent Valentino, of Angle, Murphy, Valentino & Campbell, P.C., York, for appellee.
In this case, the district court sustained a demurrer in favor of the County of Sarpy and dismissed Timothy Lawry and Colleen Lawry's petition, which alleged that the county was negligent with respect to flood warnings it undertook, based on Neb.Rev.Stat. § 13-910(2) (Reissue 1991), the discretionary function exception in the Political Subdivisions Tort Claims Act. Because we determine that one of the grounds on which the county's demurrer was asserted was well taken, we affirm the judgment of the district court.
The Lawrys initially filed a petition asserting a negligence cause of action against the county pursuant to the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. § 13-901 et seq. (Reissue 1991 & Cum.Supp.1992). The circumstances giving rise to the action involved flooding that occurred in Sarpy County along the Platte River in early March 1993. The initial petition claimed that the county negligently failed to warn the Lawrys of impending flooding and that the county's failure to warn caused damage to the Lawrys' real and personal property. Additionally, the petition alleged that the county negligently attempted to construct an emergency dike, that its action was not effective, and that such action caused delay and omission in warning the Lawrys and others of the flooding. The county demurred to the petition on the bases that the district court lacked subject matter jurisdiction over the action and that the petition failed to state facts sufficient to constitute a cause of action.
The district court, on November 7, 1995, sustained the demurrer on the grounds that the governmental actions at issue were discretionary functions and therefore immune from suit under the Political Subdivisions Tort Claims Act. Because the district court found that the action was barred by virtue of the county's immunity under the Political Subdivisions Tort Claims Act, the court did not consider the county's other claim of statutory immunity under Neb.Rev.Stat. § 81-829.55 (Reissue 1994). The Lawrys then filed an amended petition in the district court.
The Lawrys made the following assertions in their amended petition, which this court must accept as true for the purpose of reviewing the order sustaining the county's demurrer: The Lawrys were, at all relevant times, owners of real property located in Sarpy County, Nebraska, which they occupied as their primary residence. Sometime prior to 4:30 p.m. on March 8, 1993, the county, by and through its officers, agents, or employees, had knowledge of an impending flood from waters flowing in the Platte River and of the threat the flooding posed to persons and property within the county's jurisdiction. On March 8, at approximately 4:30 p.m., a dike or levee used to contain waters flowing in the Platte River broke, allowing floodwaters to escape and placing property downstream from the dike or levee, including the Lawrys' property, in peril. The Lawrys' property is located approximately 3 miles downstream from the point along the Platte River where the dike or levee broke.
Sometime after 4:30 p.m. on March 8, 1993, the county made a decision to warn all persons located downstream from the damaged dike or levee. Additionally, the county made a decision to try to impede the floodwaters by building an emergency dike. The emergency dike succeeded in holding back the floodwaters until about midnight on March 8, at which time it gave way and released the floodwaters, which caused extensive damage to property located downstream, including the Lawrys' property.
In their amended petition brought pursuant to the Political Subdivisions Tort Claims Act, the Lawrys allege five specific acts of negligence by the county that proximately caused damage to their real and personal property. Generally, the Lawrys assert that the county, having made the decision to warn all the downstream residences, had a duty to exercise reasonable care in the implementation of that decision by acting in a fashion reasonably calculated to warn, in a timely manner, those persons whose lives and property were jeopardized by the flooding. Specifically, the county allegedly breached this duty in the following five ways: (1) in failing to identify all downstream residents, including the Lawrys; (2) in failing to utilize the civil defense siren; (3) in not initiating the warning process sooner; (4) in utilizing the sheriff's department's existing dispatchers to provide the warning without calling in additional staff and/or invoking its mutual aid contracts; and (5) in failing to establish and maintain a written procedure or protocol to be followed in circumstances like those present in this case. The amended petition does not contain an allegation of negligence with respect to the construction of the emergency dike or any delay or omission of warning resulting therefrom.
The county again demurred to the amended petition on the same bases as the original demurrer, i.e., lack of subject matter jurisdiction and failure to state a cause of action. The district court sustained the county's demurrer "for the same reasons" set forth in the court's November 7, 1995, order and granted the Lawrys 30 days to further amend their petition. However, the Lawrys elected to stand on the amended petition for the purpose of an appeal, and the district court dismissed the lawsuit with prejudice. The Lawrys brought this appeal in the Nebraska Court of Appeals, and we removed the case to our docket pursuant to our authority to regulate the dockets of the Court of Appeals and this court.
The Lawrys claim that the district court erred in determining that the discretionary function exception to the Political Subdivisions Tort Claims Act applies to the facts of this case and, therefore, that the district court erred in sustaining the county's demurrer.
In an appellate court's review of a ruling on a general demurrer, the court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader. Billups v. Scott, 253 Neb. 287, 571 N.W.2d 603 (1997); County of Adams v. Nebraska State Bd. of Equal., 252 Neb. 847, 566 N.W.2d 392 (1997).
An order sustaining a demurrer will be affirmed if any one of the grounds on which it was asserted is well taken. Crider v. Bayard City Schools, 250 Neb. 775, 553 N.W.2d 147 (1996); Pilot Investment Group v. Hofarth, 250 Neb. 475, 550 N.W.2d 27 (1996). The county demurred on two separate grounds...
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